The law and its officers

[fpb]

Point one: Mr Eric Holder, the United States' chief law enforcement officer, has announced that his department will not defend lawsuits involving the Defence of Marriage Act, a federal law duly passed by Congress and signed by (a Democrat) President.
Point two: In Italian law there is a crime called omission of an official duty, which carries, I believe, a jail term.

Comments

[jordan179.livejournal.com]

Indeed -- this would be termed "misfeasance" in America (it's "malfeasance" if done with bad intent). Holder could be prosecuted for this, and he's skating on increasingly thinner ice as Obama's Administration loses support in both Congress and the Courts. Obama and Holder have both made this worse by deliberate defiance of both.

Holder's done this before, too, on a more serious matter: the New Black Panther Party voter intimidation case.

[fpb.livejournal.com]

And now the bounty put on Zimmerman's head. What will it take to wake the average Democrat up?

[blue-sky-day.livejournal.com]

They don't really care: a lot of Democrats are opposed to the DOMA, and therefore will approve of this decision
Also, plenty of his supporters probably buy in 100% to the attacks on Zimmerman (even though the news media have been caught lying and distorting aspects of the case).

[fpb.livejournal.com]

The point is that the law is to be defended even if you disagree with it. If Democrats as a mass don't understand this simple and obvious point, they are not worthy of being called citizens of a free commonwealth.

[luckymarty.livejournal.com]

Yes, this announcement was made some years ago, when Obama was still pretending to oppose gay marriage.

I am peripherally involved in a current lawsuit challenging the DOMA: it turns out Congress has its own legal staff (the Bipartisan Legal Advisory Group, with the unpleasant acronym BLAG) which had to petition the judge for permission to provide a defense of the DOMA, because the DOJ lawyers won't.

*

There actually is a respectable argument to be made that the President has a duty to refuse to defend in court laws which he believes to be unconstitutional -- it doesn't fit well in the mouths of those who think "constitutional" is a synonym for "good" and "unconstitutional" for "bad," but it's respectable.

[fpb.livejournal.com]

Sorry, I don't see it. The President has no more right to decide which law is constitutional or not than any other elected or unelected officer, with the exception of judges, [part of] whose job it is. The executive is supposed to execute, that is, carry out, the laws. If we thought otherwise, there would be no defence against, say, a law enforcement officer sympathetic to a terrorist movement deciding that the laws that condemn terrorism are unconstitutional. Or has that already happened?

[luckymarty.livejournal.com]

The President takes an oath to uphold the Constitution. Both Congress and the President have in recent years decided to farm out the duty of deciding what the Constitution is to the Supreme Court. This is an understandable reaction to the prevailing school of constitutional interpretation which has (to be blunt) been corrupted by both theory and practice over the course of the last several decades.

However, it is by no means self-evident that the President ought to pretend that he doesn't possess the faculty of judgement in upholding his duties of office. Take the easy case first: if the President thinks that a bill passed by Congress is unconsitutional, he has a duty to veto it. The case in which an unconstitutional law has been passed and signed by a predecessor is harder. If it's gone before the Supreme Court and withstood constitutional scrutiny, the President ought to uphold it. Most laws, however, have never undergone such judicial review. In such a case, if the President is convinced a statute is unconstitutional, it's in keeping with his oath of office to refuse to enforce it. It would also, of course, be incumbent on him in such a case to seek to have the offending statute repealed by Congress (which he has no resources to accomplish other than rhetorical) or overturned by the Supreme Court (which he is in a good position to accomplish through the Department of Justice).

Note that I don't say this duty exists for all members of the executive branch: under the Consitution, all of the President's underlings have only delegated constitutional authority. A similar duty *does* exist for members of Congress, but it only affects how they ought to vote on proposed legislation.

Anyway, that's the argument. For what it's worth, I think it's probably correct in the abstract -- but it's probably just as well it's not commonly accepted under the current constitutional regime, in which all three branches of the federal government routinely exceed their powers.